United States v. Edward Andrew Grana , 174 F. App'x 484 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAR 30, 2006
No. 05-12847 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-20323-CR-PAS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDWARD ANDREW GRANA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 30, 2006)
Before TJOFLAT, ANDERSON and BLACK, Circuit Judges.
PER CURIAM:
Edward Grana appeals his conviction by a jury of theft of approximately
$320,000 in United States currency belonging to the Bureau of Engraving and
Printing, in violation of 18 U.S.C. §§ 641 and 2. He raises two arguments on
appeal. First, Grana argues that the district court abused its discretion and violated
his Sixth Amendment rights by restricting his the scope of his cross-examination of
government witnesses.1 As to this argument, he takes issue with the district court’s
ruling that he could not reference on cross-examination recordings made by
government witnesses Luis Valentin, Sergio Sanchez, and Elbin Delcid. He claims
that the fact that “the witnesses made the recordings was pertinent to [their]
credibility as to bias and motive to lie.” Grana further argues that the district court
erred by precluding him from cross-examining Valentin and Sanchez regarding
Valentin’s attempts to get Sanchez to engage in drug transactions. He argues that
the district court erred by failing to allow him to question Sanchez as to whether he
was aware that Grana intended to rent a storage unit before the theft took place.
Grana’s second argument is that the district court coerced the jury into
returning a verdict by releasing them on a Friday with instructions to return to
continue deliberations the following Monday because it “improperly suggested that
[the court] expected a verdict,” unlike the Allen 2 charge given by the court the
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Grana also states, generally, that his Fifth Amendment right to a fair trial was violated
by the alleged errors set forth in the first issue he raises on appeal. However, he does not explain
how his Fifth Amendment rights were violated, and no such basis is apparent.
2
Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896)
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previous day. He contends that “the cumulative effect of the trial court’s refusal to
acknowledge [the jury’s] genuine inability to reach an agreement, along with the
trial court’s supplemental instruction prior to releasing the jury for the weekend,
improperly coerced the jury to reach their verdict.”
Each argument is addressed in turn.
I.
To prove a violation of 18 U.S.C. § 641, the government has the burden to
show that: (1) the defendant fraudulently appropriated money or property to his
own use or the use of others; (2) the money or property belonged to the
government; and (3) the defendant did so knowingly and willfully with the intent
either temporarily or permanently to deprive the government of use of the money
or property. See 18 U.S.C. § 641; United States v. McRee, 7 F.3d 976, 980
(11th Cir. 1993).
The Confrontation Clause provides that: “In all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him.”
U.S. Const. amend. VI. The Supreme Court has determined that this provision
serves to “ensure the reliability of the evidence against a criminal defendant by
subjecting it to rigorous testing in the context of an adversary proceeding before
the trier of fact.” Maryland v. Craig, 497 U.S. 836, 845, 110 S.Ct. 3157, 3163,
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111 L.Ed.2d 666 (1990). Included in the Confrontation Clause’s guarantee is that
witnesses against an accused must submit to cross-examination. Craig, 497 U.S. at
845-46, 110 S.Ct. at 3163. However, the Sixth Amendment right to confrontation
is not absolute. United States v. Deeb, 13 F.3d 1532, 1537 (11th Cir. 1994).
Specifically, the Confrontation Clause “guarantees only ‘an opportunity for
effective cross-examination, not cross-examination that is effective in whatever
way, and to whatever extent, the defense might wish.’” Kentucky v. Stincer,
482 U.S. 730, 739, 107 S.Ct. 2658, 2664, 96 L.Ed.2d 631 (1987) (citation omitted).
A defendant’s rights under the Confrontation Clause are protected as long as
“cross-examination exposes the jury to facts sufficient to evaluate the credibility of
the witnesses and enables defense counsel to establish a record from which he can
properly argue why the witness is less than reliable.” Mills v. Singletary, 161 F.3d
1273, 1288 (11th Cir. 1998). Once there is sufficient cross-examination to satisfy
the Confrontation Clause, the district court may limit further cross-examination
within its discretion. United States v. Diaz, 26 F.3d 1533, 1539 (11th Cir. 1994).
The Confrontation Clause requires the admission of impeachment evidence
if “a reasonable jury would have received a significantly different impression of
the witness’ credibility had counsel pursued the proposed line of
cross-examination.” United States v. Garcia, 13 F.3d 1464, 1469 (11th Cir.1994).
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In Diaz, we held that a district court did not violate the Confrontation Clause
or abuse its discretion by prohibiting cross-examination of a government witness
regarding a prior arrest and a related investigation and civil action, notwithstanding
the defendants’ contention that incident gave the witness motive to testify
favorably for government, in part because the defendants were allowed to delve
into witnesses credibility by inquiring if he had any reason to “curry favor” with
the government. Diaz, 26 F.3d at 1539. We have also held that a defendant’s
Confrontation Clause rights were not violated by the district court’s refusal to
admit evidence regarding a witness’ past criminal history because extensive
impeachment evidence was already presented. United States v. Burston
13 F.3d 1464, 1336-37 (11th Cir. 1998).
Hearsay is a statement, other than one made by the declarant while testifying
at the trial or a hearing, offered into evidence to prove the truth of the matter
asserted. Fed.R.Evid. 801(c). Generally, hearsay is inadmissible. Fed.R.Evid. 802.
Among the exceptions to the general rule is that the district court may allow
evidence of a statement that is otherwise hearsay when the purpose is to establish
the declarant’s state of mind. Fed.R.Evid. 803(3).
When a party properly preserves its claim, we review the district court’s
evidentiary rulings for an abuse of discretion. United States v. Jiminez,
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224 F.3d 1243, 1249 (11th Cir. 2000). We will reverse an erroneous evidentiary
ruling “only if the resulting error was not harmless.” United States v. Hands, 184
F.3d 1322, 1329 (11th Cir. 1999), corrected by 194 F.3d 1186 (11th Cir. 1999); see
also Fed.R.Crim.P. 52(a) (noting that errors that do not affect substantial rights
must be disregarded). An error is harmless unless “there is a reasonable likelihood
that [it] affected the defendant’s substantial rights.” United States v. Hawkins, 905
F.2d 1489, 1493 (11th Cir.1990). We need not reverse a conviction if the
evidentiary error “had no substantial influence on the outcome and sufficient
evidence uninfected by error supports the verdict.” United States v. Fortenberry,
971 F.2d 717, 722 (11th Cir. 1992).
As to his Confrontation Clause argument, on cross-examination of Valentin,
Grana ascertained that he had been involved in drug sales, and had cooperated with
the government in an effort to get his brother out of prison early. He questioned
whether Valentin and his brother concocted the story about Grana stealing the
currency, and whether he was angry with Grana. Valentin stated during
cross-examination that he had cooperated with the government during its
investigation. Grana also ascertained that Valentin had previously lied to obtain
money in connection with past drug transactions and that he had confessed these
crimes to the government but had not been prosecuted. Finally, he questioned
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whether Valentin had a record of $500 of the stolen currency that he claimed Grana
gave him.
Grana also questioned Delcid about the events that he claimed to have
witnessed on the date of the theft, and Delcid admitted cooperating with the
government. On his cross-examination, Sanchez admitted that he had sold drugs
to both Grana and Valentin. He also admitted that he was afraid of being arrested
and incarcerated for his drug activity. Sanchez verified that he had cooperated
with the government, but refused to speak with an investigator acting on Grana’s
behalf. Grana also questioned whether Sanchez believed that he could avoid jail
by cooperating with the government, and Sanchez admitted that he was angry at
Grana for not paying him all of the money due on a paint job.
In sum, Grana’s cross-examination of these government witnesses addressed
their prior drug use, motives to lie, versions of events, and cooperation with the
government. See Burston 159 F.3d at 1336-37. A reasonable jury’s evaluation of
the witnesses’ credibility would not have been significantly different had the
recorded conversations or testimony about them been introduced, especially to the
extent that Grana sought to introduce them to show that the witnesses cooperated
with the government, as that fact was clearly established. See Garcia, 13 F.3d at
1469. The district court’s limitation of the examinations by refusing to allow
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evidence of the audiotapes, therefore, was not an abuse of discretion in this respect.
See Diaz, 26 F.3d at 1539.
As to the hearsay issues, at trial, Grana attempted to elicit and admit into
evidence testimony from Sanchez regarding statements Grana allegedly made prior
to the date of the theft that he wished to obtain a storage unit. Grana argued that
this evidence would tend to refute the government’s claim that he wanted to rent
the unit to store the stolen currency. The district court sustained the government’s
objection on hearsay grounds, finding that the statements were offered for their
truth, and not - as Grana argued - to show “state of mind” or “intent.” Grana also
filed a motion in limine to introduce evidence of Valentin’s “silence” on one
audiotape, claiming that this undermined Valentin’s credibility, but the court
denied his motion on the basis that the tape was inaudible, and otherwise on
hearsay grounds.
Assuming arguendo that the district court erred by failing to admit this
evidence as hearsay, it was harmless in light of the evidence against Grana at trial.
See Fortenberry, 971 F.2d at 722. Specifically, Valentin and Sanchez testified that
Grana had confessed to stealing the currency. Valentin testified that Grana told
him in detail how he obtained the currency, and that he had previously considered
committing such a crime if the opportunity arose. Valentin’s version of the theft,
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as told to him by Grana, was corroborated by a government agent’s version of the
suspected manner of the theft. There was also testimony that security records
showed that Grana exited an employee checkpoint, where he was not searched, into
a public area, and re-entered through the same check point shortly thereafter on the
date and around the time of the theft. Accordingly, there was ample evidence upon
which the jury could have found Grana guilty of knowingly and willfully taking
money that belonged to the government with the intent to deprive the government
of its use, in violation of § 641. See 18 U.S.C. § 641; McRee, 7 F.3d at 980.
Based upon the foregoing, first, there was no error regarding to the district
court’s limitations on Grana’s cross-examination of government witnesses because
his cross-examination was adequate to protect his rights under the Confrontation
Clause. Second, any evidentiary error alleged by Grana was harmless in light of
the ample evidence supporting the jury’s guilty verdict.
II.
We determine whether a trial judge’s instruction that the jury continue
deliberation was coercive based upon the totality of the circumstances.
Lowenfeld v. Phelps, 484 U.S. 231, 237, 108 S.Ct. 546, 550, 98 L.Ed.2d 568(1988).
In United States v. Brokemond, 959 F.2d 206, 208-09 (11th Cir. 1992), we
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reviewed a case in which the appellant conceded the validity of a modified Allen
charge, but argued, as Grana does, that a subsequent instruction to the jurors given
in response to their failure to agree on a verdict was coercive. See Brokemond,
959 F.2d at 208-09. In that case, the district court’s supplemental instruction
reminded jurors that their verdict had to be unanimous. Id. at 208. We noted that
the district court’s reemphasis of the unanimity requirement in the supplemental
instruction “was merely a reiteration of that part of the initial charge,” and did not
“suggest to the jury which verdict it should return.” Id. at 209.
Therefore,“[v]iewing the supplemental instruction in light of the totality of the
overall charge, which was correct in all respects,” the supplemental instruction was
not coercive. Id.In United States v. Prosperi, 201 F.3d 1335, 1341 (11th Cir. 2000), we stated
that a “brief instruction” that consisted of the court advising the jury to continue
deliberations was not coercive because it did not “suggest that a particular outcome
was either desired or required.” Prosperi, 201 F.3d at 1341. Similarly, in Watson
v. Alabama, 841 F.2d 1074, 1076 (11th Cir. 1988), we ruled that a supplemental
instruction given to a jury was not coercive because that the judge’s initial charge
to the jury was thorough, extensive and correct, and the supplemental instruction
only reemphasized the requirement of unanimity. Watson, 841 F.2d at 1076. In
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contrast, in Jenkins v. United States, 380 U.S. 445, 446, 85 S.Ct. 1059, 1060,
13 L.Ed.2d 957 (1965), the Supreme Court held that a trial judge’s statement, in
the course of his response to a jury’s note that they were unable to agree on verdict,
that “[y]ou have got to reach a decision in this case” was coercive. Jenkins, 380
U.S. at 446, 85 S.Ct. at 1060.
In the present case, in response to an initial note advising the district court
that the jurors had not reached a verdict, the district court read a modified Allen
charge, the propriety of which Grana does not dispute.
In response to the second note advising that the jurors had not yet reached a
verdict, the district court advised that the jury continue deliberations for
approximately 15 to 20 minutes. A third note was also received, though it is
unclear exactly when that note was submitted by the jury, and it appears from the
record that it might have been submitted while the jury waited on word from the
district court regarding the second note. In any event, at the end of the day on a
Friday, after two notes from the jury subsequent to the Allen charge, the district
court advised the jurors that they would resume deliberations on the following
Monday in an effort to reach an unanimous verdict. Specifically, the court advised
that the jurors “get some rest over the weekend,” and “[r]e-think [their] positions.”
It also stated that the jurors were “free to think about what’s going on in terms of
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[their] deliberations.”
The totality of these circumstances were not inherently coercive because the
district court did not “suggest that a particular outcome was either desired or
required.” See Prosperi, 201 F.3d at 1341. The court also did not state that the
jury would be required to reach a decision. Jenkins, 380 U.S. at 446, 85 S.Ct. at
1060.
Based upon the foregoing, we affirm Grana’s conviction.
AFFIRMED.
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